Archive for June, 2011

Righthaven Recap Recap

Thursday, June 30th, 2011

Eric Goldman, back from Russia, looks to have used jet-lag fueled wakefulness to do a recap of two weeks’ worth of Righthaven rulings on his Technology & Marketing Law Blog. So, if you don’t have time to read all those decisions, Professor Goldman has done you the service of knocking it all down to 1,429 words.

Okay, so if you’re too lazy to read that, here’s my recap of Goldman’s recap:

Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011):

Judge Pro followed Judge Hunt’s Democratic Underground ruling in holding that Righthaven lacked standing, and then went on also to say that Hoehn lost on fair use. Goldman is rightly skeptical of some of Judge Pro’s analysis, saying:

Judge Pro’s discussion on the second point (nature of the work) has attracted some criticism, perhaps justifiably so. It’s difficult to say that a 19 paragraph editorial doesn’t have the same level of creativity as other highly creative works. I tend not to obsess about the details of any fair use analysis given its nature as an equitable defense. The judge was twisting the analysis to make it clear Righthaven should lose. Denigrating the editorial’s creativity is an awkward way to get there, but it demonstrates that judges aren’t buying what Righthaven is selling.

Yeah, I think that’s well put. At the end of the day, you can get way too carried away with the fair-use factors. I tell my students that the most important question in fair-use analysis is just, “Does it seem fair?” (But don’t base your brief around that. It tends not to get explicit endorsement in the case law.)

Goldman notes that Righthaven has lost on fair use three times, including two cases now, including Hoehn, where the defendants re-used THE ENTIRE work. Crazy, because that’s often a show-stopper for fair use.

As a jurisprudential corpus, this fair use caselaw is becoming quite defense-favorable.

Yup. Righthaven is doing more to expand the doctrine of fair use than just about anybody in the past few years.

At this rate, if Righthaven keeps it up, they’ll do more to expand fair use than Google. And it’s hard to do anything better than Google. Especially, you would think, when you’re trying not to.

Righthaven v. Barham, 2011 WL 2473602 (D. Nev. June 22, 2011); ?Righthaven v. DiBiase, 2:10-cv-01343-RLH-PAL (D. Nev. June 22, 2011):

The same Judge Hunt who gave Righthaven the smackdown in Democratic Underground on lack of standing does it again here.

Righthaven v. Virginia Citizens Defense League, 2:10-cv-01683-GMN-PAL (D. Nev. June 23, 2011):

Judge Navarro rejects a 12(b)(6) motion to dismiss on fair use and lack of standing, but notes that the Democratic Underground decision came out after the briefs for Virginia Citizens Defense League were already in. Goldman thinks she’ll get on board eventually:

My guess is that she will be persuaded on summary judgment.

Goldman’s bottom-line assessment:

Righthaven’s business is “in tatters.” Everything’s going wrong for them all at once.

Short of completing a hail mary pass in the Ninth Circuit, there is only one possible endgame for Righthaven, and it won’t be pretty.

Yup. I agree with that too. And I’ll add that your chances of getting an appeals court to come to your aid are likely to drop precipitously when you’ve tried systematically to hoodwink judges at the trial court level by playing fast and loose with the facts.

So, that’s a little over 500 words, recapping a recap of a little over 1,400 words. Have I just showcased what is so liberating about blogging as a literary genre? Or what is so ridiculous about it?

Hmmm. Well, either way, I do feel rest assured that what I just did was thoroughly legal.

South Carolina Supreme Court Filing Claims Righthaven Committed Unauthorized Practice of Law

Wednesday, June 29th, 2011

Todd Kincannon, the South Carolina lawyer representing Dana Eiser of the Lowcountry912 blog, sent me a petition that he just filed in the South Carolina Supreme Court alleging that Righthaven is engaged in the unauthorized practice of law.

I’ve posted the petition to my own server: [pdf].

I’ve been waiting for someone to do this since I heard about Righthaven splitting litigation proceeds with its newspaper partners. You can’t do that. Lawyers can’t split fees with non-lawyers.

Why not?

If a lawyer splits fees with a non-lawyer, then that means a non-lawyer is collecting fees for practicing law. And you have to be a lawyer to practice law. That’s the logic of it.

As the petition says: “[A]n entity in the business of seeking assignments, pursuing litigation in its own name, and splitting the proceeds with the assignor commits a fraud on the court and the unauthorized practice of law.” (Pet’n, pp. 4-5).

After I get a chance to take a better look at the petition, I’ll write with more.

Prosecutor Michael C. Green Should Resign

Tuesday, June 28th, 2011

Monroe County District Attorney Michael C. Green (Photo: Monroe County)

Prosecutors have dismissed their case against Emily Good, who was arrested for video recording Rochester, N.Y. police officers during a traffic stop. Good, who was doing the filming while on her own property, was charged with “obstructing government administration.”

The entire affair was a rank abuse of power.

The police involved should be disciplined. Many have chimed in to call for that, and an internal review is pending. But what I have not seen much discussion of is the role of the DA’s office in this.

Good was arrested May 12. It took until yesterday, June 27, for the DA’s office to get rid of this case. That is, they waited until after a media firestorm and protests erupted. The fact is, Good never should have been charged. The DA’s office in Monroe County, N.Y. failed in its obligation to protect the public trust. Instead, the district attorney’s office used its resources to intimidate a citizen obviously exercising constitutionally protected rights.

Monroe County DA Michael C. Green should tender his resignation immediately.

Unless there is something big that I’m missing – such as Green being in a coma for the last month – he bears the responsibility for the lion’s share of this disgrace. The police arrested Good. But it was the DA’s office who pursued the case.

The Monroe County DA’s office is a big place, and I understand that, but there is no way this could have escaped Green’s attention early on. Green should have taken action immediately to dismiss the charges and set this right. Instead, by pursuing the case as far as he did, Green – who is an elected official – sent a clear message that he will use the power of his office to protect local government from citizen scrutiny and intimidate its critics.

And, by keeping this going, he forced Good to hire a lawyer to defend herself from these sham charges. Someone had to pay for that. And no citizen should have to endure it. Absolutely outrageous.

Shame on Mike Green.


UN Report: Internet as Human Rights Issue

Monday, June 27th, 2011

Blue flag of the United NationsThe United Nations Human Rights Council has published a report [pdf] by Special Rapporteur Frank La Rue on the promotion and protection of the right to freedom of opinion and expression. The document is heavy on analysis of online expression, looking at the internet as a human rights issue.

I’ll post various key excerpts on more specific topics in coming days. But first, here are some key excerpts of the report regarding the importance of the internet for free expression. There is a lot of good sense in here. Most importantly, the internet strongly identified as implicating human rights issues. Additionally, we get the counsel that because the internet is special, it deserves freedoms from regulation that traditional forms of media may not enjoy.

These excerpts are from paragraphs 2, 19-23,

The Special Rapporteur believes that the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. Indeed, the recent wave of demonstrations in countries across the Middle East and North African region has shown the key role that the Internet can play in mobilizing the population to call for justice, equality, accountability and better respect for human rights. As such, facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States. …

Very few if any developments in information technologies have had such a revolutionary effect as the creation of the Internet. Unlike any other medium of communication, such as radio, television and printed publications based on one-way transmission of information, the Internet represents a significant leap forward as an interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms that facilitate participatory information sharing and collaboration in the creation of content, individuals are no longer passive recipients, but also active publishers of information. Such platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information.

Indeed, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. …

… the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the Internet.

The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.

The vast potential and benefits of the Internet are rooted in its unique characteristics, such as its speed, worldwide reach and relative anonymity. At the same time, these distinctive features of the Internet that enable individuals to disseminate information in “real time” and to mobilize people has also created fear amongst Governments and the powerful. This has led to increased restrictions on the Internet through the use of increasingly sophisticated technologies to block content, monitor and identify activists and critics, criminalization of legitimate expression, and adoption of restrictive legislation to justify such measures. In this regard, the Special Rapporteur also emphasizes that the existing international human rights standards, in particular article 19, paragraph 3, of the International Covenant on Civil and Political Rights, remain pertinent in determining the types of restrictions that are in breach of States’ obligations to guarantee the right to freedom of expression.

However, in many instances, States restrict, control, manipulate and censor content disseminated via the Internet without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim, as explored in the following sections. Such actions are clearly incompatible with States’ obligations under international human rights law, and often create a broader “chilling effect” on the right to freedom of opinion and expression.

In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate.

Similarly, while the protection of children from inappropriate content may constitute a legitimate aim, the availability of software filters that parents and school authorities can use to control access to certain content renders action by the Government such as blocking less necessary, and difficult to justify.12 Furthermore, unlike the broadcasting sector, for which registration or licensing has been necessary to allow States to distribute limited frequencies, such requirements cannot be justified in the case of the Internet, as it can accommodate an unlimited number of points of entry and an essentially unlimited number of users.

Eric Goldman’s Notes from Law & Econ of Search and Ads

Friday, June 24th, 2011

Eric Goldman has posted his notes from the Google-sponsored conference “The Law and Economics of Search Engines and Online Advertising” at the George Mason University School of Law. It includes a lot of insight into Google search, how it works, and why Google make some of the choices it does in formulating search results.

New Dot-Anything Domain Name Policy Lousy for Most Bloggers

Tuesday, June 21st, 2011

.blog .painYesterday ICANN – the non-profit stewards of the internet domain name system – announced a long-anticipated decision to let anyone apply to become owners of new top level domains ( TLDs). The top level domains are the last characters in a web address or e-mail address; that is, the characters that go after the final period. The most famous, of course, is .com. Now, the floodgates will be opened.

That means, theoretically, I could own .bloglawblog, allowing me to make my web address bloglawblog.bloglawblog. But that’s very theoretical. Why? Because it’s expensive. Very expensive. An estimated $185,000 to register a TLD.

And I don’t want .bloglawblog that bad.

What this means for most bloggers and citizen journalists, is that they will not have the opportunity get a TLD for themselves. But, they will the exciting opportunity to be placed under siege by profiteers and cybersquatters.

For instance, when applications are accepted in January 2012, you can bet some company will apply to own .blog. Then, that company will soon write to you, saying,

Hello friend! We’ve noticed that you own a blog called Kentucky Trainspotters, and that your domain is For just $500 per year, you can get the domain!

And if you don’t, we’ll sell it to someone else.

You don’t want that to happen, do you?

For this and many other reasons I won’t go into, I think this stinks. And I’m certainly not alone as a critic.

ICANN is talking about how this will usher in a new era on the internet. That’s silly. The internet is about the content, not the addresses. But it certainly may usher in a new era of headaches. Thanks, ICANN.



Is Righthaven CEO Steve Gibson in Denial?

Monday, June 20th, 2011

There’s a remarkable blog post by Jeff Bercovici of – it quotes Righthaven CEO Steve Gibson as saying last week’s defeat in court, which found that Righthaven had no legal basis upon which to sue, “raises an interesting question as to who does have standing.”

Bercovici goes on to quote Gibson as saying, “[I]t is our position that we can reapproach the court [to clarify who, in fact, has the standing to sue].”

Is Gibson in denial? The court said Righthaven was “likely dishonest” multiple times with the court. The order used words like “brazen, “egregious,” “flagrantly false,” and “[possibly] outright deceitful.” The court said previous decisions were “tainted” by Righthaven’s failure to make required disclosures in other cases. Righthaven and Gibson are in serious trouble. Like career-ending, out-of-business type trouble. (It’s not even inconceivable that, depending on what all has transpired, that this is go-to-jail type trouble.)

I suggested to reporter Steve Green of the Las Vegas Sun that the court’s language was “the kind of stuff that, if you are on the wrong side of it, would likely cause all the blood to rush to your stomach.” And I blogged something similar.

But I guess not for Steve Gibson. If he is keeping a stiff upper lip, that’s one thing. But if he seriously thinks it’s a good idea to reapproach the court and ask for clarification on who has standing to sue, then he may be having a slight break with reality. Or maybe this is just a manifestation of the kind of hubris that got him to this point in the first place.

Bush White House Allegedly Directed CIA to Spy on American Blogger

Friday, June 17th, 2011
Headshot of Juan Cole

This photo of Cole was publicly available on his blog. Imagine that.

Jonathan H. Adler of The Volokh Conspiracy points to quite an alarming story in the New York Times reporting allegations that the George W. Bush White House directed the CIA to gather damaging information about blogger Juan Cole, a University of Michigan professor whose liberal views on his Informed Comment blog were highly critical of Bush’s foreign policy.

The allegations come from ex-CIA officer Glenn L. Carle. The NYT reports:

According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”

“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.

Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.

“But what might we know about him?” he said Mr. Low asked. “Does he drink? What are his views? Is he married?”

Mr. Carle said that he responded, “We don’t do those sorts of things,” but that Mr. Low appeared undeterred. …

Wow. That sure seems illegal. A former CIA general counsel interviewed for the story agreed, saying, “The statute makes it very clear: you can’t spy on Americans.”

If Carle’s allegations are correct – or even partly right – this is just completely outrageous. But I can’t do a better job of pointing out how absurd it all is than Cole does himself:

… I mean, really. How inept do you have to be to enlist intelligence officials in monitoring bloggers? They put up their thoughts for everyone to see every day! I keep thinking of David Low’s stupid question as to what the CIA could find out about me. Did he mean, aside from the gigabytes of data at my own blog?

As Cole says, maybe the Bush administration should have been trying to use some of those CIA resources to get Osama Bin Laden instead of digging up info on American bloggers.

The State Bar of Nevada Should Consider Attorney Misconduct Charges Against Steve Gibson of Righthaven

Thursday, June 16th, 2011

bar in courtroomI believe it is time for the State Bar of Nevada to begin an attorney misconduct investigation of Righthaven CEO Steve Gibson and, perhaps, other lawyers at the center of the Righthaven enterprise.

When I first read about the Righthaven lawsuits, I thought what Righthaven was doing was morally deplorable, but I assumed that Righthaven was on solid legal footing. I believed, as apparently did many judges, that Righthaven had become the legitimate owner of the copyrights upon which it was suing.

Righthaven’s acquisition of those copyrights from Stephens Media – mostly to stories from the Las Vegas Review-Journal – were prerequisites to being able to sue hapless bloggers and other individuals, and then threaten them with $150,000 statutory damage awards for having reposted articles or photos. By doing this, Righthaven got many individuals to settle for a few thousand dollars each, allowing Righthaven to do a volume business of minor shakedowns. The Righthaven business model, while vile, appeared to be perfectly allowable under the law.

But now we know that was not actually true. This week, Judge Roger Hunt of the U.S. District Court for the District of Nevada issued an order [pdf] in the case of Righthaven v. Democratic Underground that paints a withering portrait of plaintiff conduct in the case. We now know the assignments of copyrights by newspaper owner Stephens Media to Righthaven were, in fact, sham transactions. And because of Righthaven’s failure to be candid about the underlying arrangements with Stephens Media, it is now clear, as the court found, that Righthaven made material misrepresentations to the court.

Based on the federal court’s findings, this looks to be egregious attorney misconduct.

The federal court appears to be on the verge of sanctioning Righthaven. But the State Bar of Nevada can go much further. The bar has the ability to subject Gibson and other lawyers at the center of the enterprise to professional discipline, including, if warranted, disbarment.

I very much regret suggesting a misconduct investigation against any attorney, but this situation appears to be one with many real-life victims, and the behavior at issue, based on Judge Hunt’s findings, is wholly incompatible with the ethical standards expected of lawyers.

Consider what has happened: Righthaven lawyers constructed a sham transaction, and then made multiple misrepresentations to courts and third parties in order to hide the sham nature of the transaction. This was done in a bid to get a number of unsophisticated, unrepresented defendants to fork over substantial settlement payments, largely out of fear or because of their financial inability to mount a defense.

The potential to pervert our civil justice system in this way is one of the most important reasons attorneys are required to demonstrate a high moral character as a prerequisite to receiving a license to practice law. Righthaven’s behavior, in my opinion, is incompatible with that standard.

Let’s look at the Nevada Rules of Professional Conduct. Rule 3.3, called “Candor Toward the Tribunal,” states that “A lawyer shall not knowingly … Make a false statement of fact or law to a tribunal … ” Another provision, Rule 8.4, states, “It is professional misconduct for a lawyer to … Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] Engage in conduct that is prejudicial to the administration of justice[.]”

Those rules appear to have been violated in substantial ways. Consider the following quote from this week’s order from pages 10 and 11, discussing the Strategic Alliance Agreement (“SAA”), between Righthaven and Stephens Media:

As the undersigned issued one of the orders Righthaven cites for this argument, the undersigned is well aware that Righthaven led the district judges of this district to believe that it was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the true nature of the transaction by disclosing the SAA or Stephens Media’s pecuniary interests. As the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually transferring them to Righthaven regardless of Righthaven’s and Stephens Media’s current contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of interested parties, despite Stephens Media’s right to proceeds from these lawsuits. (Dkt. #79, Ex. 1, SAA Section 5 (granting Stephens Media a fifty percent interest in any recovery, minus costs).) … [T]hose orders were tainted by Righthaven’s failure to disclose the SAA and Stephens Media’s true interest …

And on page 15 of the order:

As shown in the preceding pages, the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will only focus on the most factually brazen: Righthaven’s failure to disclose Stephens Media as an interested party in Righthaven’s Certificate of Interested Parties. … Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District.

Based on these findings, it appears that Rule 3.3 was violated multiple times by one or more attorneys on the Righthaven side. Moreover, again, based on Judge Hunt’s findings, Rule 8.4 was violated in a very significant way in the Democratic Underground case. Of course, Rule 8.4 was likely additionally violated in many other Righthaven cases as well, if not all of them.

I don’t know that Gibson or other attorneys committed misconduct. That is up to the State Bar of Nevada to determine. I certainly can say at this point that there is strong reason to believe serious misconduct has occurred, and it’s more than enough for an investigation. Gibson and others should, of course, have the opportunity to defend and explain themselves. But the matter should, at least, be taken seriously by the bar. That is especially the case where many people have been hurt and public confidence in the legal profession may justifiably be undermined if nothing is done.

Righthaven Goes Down Hard: A Look at the Democratic Underground Decision

Thursday, June 16th, 2011

Cartoonish rendering of the word "KA-POW!"This week copyright thugster and blogger-suer-extraordinaire Righthaven was dealt a stunning defeat in court. (Court’s written order [pdf])

It is a total victory for defendant Democratic Underground, but the ruling’s importance goes far beyond that. Unless overturned on appeal, it clearly signals the end of Righthaven’s current business model. The order also signals that even with restructuring, Righthaven might not have a viable enterprise going forward.

Things were going kind of bad for Righthaven up to this point. But now they’ve gotten suddenly disastrous. Why? Now there’s a newly revealed document – one obtained through the diligent efforts of the Electronic Frontier Foundation – that shows the relationship between troll-for-hire Righthaven and newspaper owner Stephens Media. That document is their overarching contract, the Strategic Alliance Agreement (“SAA”). Once you learn about it, you can see why they wanted so badly to keep it secret.

Righthaven, in suing bloggers for reposting stories or portions of stories from the Las Vegas Review-Journal, had represented that Stephens Media had assigned to it the copyright being sued over in any given case. But now, having scrutinized the SAA, the federal court in the Democratic Underground case has concluded that the copyright was never validly assigned.

And misrepresenting facts to a court is a very, very bad thing to do.

Why wasn’t the copyright validly assigned? It turns out that Stephens Media executed a form assigning the copyright, but, pursuant to the SAA, Stephens Media retained all exclusive rights with regard to that copyright except the right to sue. And a copyright assignment is not valid unless an exclusive right is transferred as well. So, for instance, Righthaven was not conferred the exclusive right to reproduce the article. (And that’s sort of what copyright is all about.)

It would be like transferring title to an automobile to someone but having a contract in place that says they can’t drive it, sit in it, lend it someone else, or even keep it in their garage. In other words, it’s a sham transaction.

I’ve looked at the order, issued by Judge Roger Hunt of the U.S. District Court in Nevada, and I found it to be very thorough and carefully reasoned. The really remarkable thing about the ruling, however, was its tone, which, while not intemperate, was certainly unusual in the staid world of judicial writing.

Look at this from page 6:

Righthaven argues that the SAA’s provisions, which necessarily include Section 7.2, do not alter the unambiguous language of the Assignment or limit the rights it obtained from Stephens Media in the Assignment. This conclusion is flagrantly false — to the point that the claim is disingenuous, if not outright deceitful.

I’ll bet Righthaven maven Steve Gibson felt the blood rush to his stomach when he read this. This is strong language for a federal court.

Also important in this order, the court signals that Righthaven is unlikely to be able to fix its business model’s legal problems with some minor adjustments. The court writes on page 8, in a footnote:

The Court does not determine whether or not the amended SAA would transfer sufficient rights to Righthaven for it to have standing in suits filed after amendment as the Court need not make that determination to rule on these motions. Nonetheless, the Court expresses doubt that these seemingly cosmetic adjustments change the nature and practical effect of the SAA.

It may be that the only things that would fix the business structure so that Righthaven could keep on suing people as it has been would be things that either Stephens Media wouldn’t be willing to agree to. And if that’s true, Righthaven’s through.

Rachel Kane Should Look to Princess Diana for Inspiration

Tuesday, June 14th, 2011

Here’s a tip for the lawyers of Rachel Kane, the California blogger who has vowed to fight back against Forever 21′s attempt to shut down her blog with a bogus trademark lawsuit:

Make sure you check out Franklin Mint Company v. Manatt, Phelps & Phillips, LLP, 184 Cal.App.4th 313 (2010). It’s a wonderful case which allowed the Franklin Mint to advance its malicious prosecution claim against the prestigious L.A. law firm of Manatt, Phelps & Phillips for filing a baseless trademark and right-of-publicity suit. That suit had been brought by Princess Diana’s estate against the Franklin Mint for, among other things, manufacturing the Princess Diana Vinyl Portrait Doll with blue beaded silk gown (which retailed for $245 – WTF?).

I blogged about the decision last year. As I said then, it’s a great case for bloggers, because it shows that there’s a downside for thugsters overreaching on trademark theories. In the Franklin Mint v. Manatt case, the California appeals court found that there was no “probable cause” to claim trademark dilution or right-of-publicity infringement, and, therefore, Manatt could be liable to the Franklin Mint for maliciously bringing a groundless lawsuit.

Manatt argued vigorously that trademark law was too fuzzy and unsettled for the California court to allow a malicious prosecution claim to go forward. But the court disagreed, saying that the “application of fundamental principles of trademark law to the facts of this case show there was no probable cause to prosecute the trademark dilution claim.”

The same exact thing could be said about Forever 21 v. Kane. Blog Will Fight Forever 21′s Absurd Legal Threats

Monday, June 13th, 2011
Woman wearing leopard-print faux fur vest

Rachel Kane has vowed to fight for her right to make fun of faux fur vests and other Forever foibles. (Photo: Forever 21)

Jenna Sauers of Jezebel reports that Rachel Kane will stand and fight Forever 21′s threat to sue her unless she takes down her blog, which lampoons the fast-fashion retailer several days a week.

And indeed, when I see something like the caveman-meets-drugstore-employee monstrosity at right, I personally can only ask, WTF?

Kane sent Jezebel the following statement, which, although written from her perspective, contains unmistakable scent of lawyer writing:

My site, WTForever21, does not infringe on any of Forever 21′s rights. It contains only criticism, commentary, and news reporting, all written in an educational and humorous manner, which are protected under applicable law. To the extent any of the material used on the site is in fact subject to intellectual property protection (which, in many instances, is by no means clear), the site’s incorporation of that material is a “fair use” under copyright, trademark law, and similar state law. It’s incredibly unlikely that any portion of the site would ever cause confusion in the minds of the general public about whether or not Forever 21 endorses or is affiliated with it. The blog in no way dilutes Forever 21′s trademark, as the company claims. If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.

In the meantime, I am leaving the blog up. I look forward to returning to blogging about fashion atrocities like lime green, faux fur covered vests and candy colored booty shorts on

I’m hoping the last sentence was penned by Kane herself rather than her lawyers. Nothing in law school prepares you for making that kind of unequivocal statement about booty shorts.

Anyway, Kane’s lawyers are right on for the most part. I must, however, register my disagreement with the characterization that it’s “incredibly unlikely” that anything on the site would ever cause confusion about endorsement by or affiliation with Forever 21. “Preposterous” is more like it.

The Hale Case: What’s Good for Old-Guard Journalists May Not Be Good for Bloggers

Friday, June 10th, 2011

The Reporters Committee for the Freedom of the Press has issued a news release about the New Jersey Supreme Court’s decision in Too Much Media v. Hale [pdf of opinion], in which the state’s shield law was held not protect writer Shellee Hale in responding to discovery requests about her sources for allegedly defamatory postings she made on an online message board.

The RCFP piece’s outlook is rosy. New Jersey media lawyer Bruce Rosen is quoted as saying the decision is a “victory for journalists” because, by overturning the intermediate appeals court decision in the case, the burden has been lowered on people seeking to invoke the shield law.

But for those people who care as much about bloggers as old-guard reporters, the takeaway from the decision may be less sanguine.

… Rosen said that individuals who host blogs and view themselves as citizen journalists may face hurdles to invoking the shield law.

“For the general public, [the case] makes it harder for individual bloggers to have automatic protection,” he said.

New Jersey Supreme Court Rules Against Blogger on Shield Law

Wednesday, June 8th, 2011

Yesterday the New Jersey Supreme Court ruled in the case of
Too Much Media v. Shellee Hale, in which a blogger sought to use the state’s reporter shield law to enable her to refuse to reveal the source of information she posted on an internet message board.

New Jersey’s high court handed Hale a loss. The opinion has been posted by the court. The court was unanimous.

Background on the lower court decision, which also went against the Hale:

Sino Clean Energy Joins DEER in Suing Short Blogger Alfred Little

Wednesday, June 8th, 2011

Sino Clean Energy facility in China (Photo: SCEI)

A while back I recounted the story of how DEER, the maker of small kitchen appliances, was suing the blogger going by the name of “Alfred Little” of the stock-tip blog Seeking Alpha.

Now James Sterngold and Dune Lawrence of Bloomberg report that DEER has been joined by fellow U.S.-listed Chinese company Sino Clean Energy Inc. (SCEI) in suing Little.

The Bloomberg story says, “The cases are the most significant efforts by Chinese companies that trade on U.S. exchanges to fight back against bloggers and short sellers who have questioned their accounting practices.”

Shenzen-based DEER’s shares have plummeted 41 percent since Little’s negative report on Seeking Alpha. (Which, by the way, disclosed that Little was short DEER. To which any investor reading the post must have said, “Duh.”) Xi’an-based Sino Clean Energy’s shares are off 49 percent since Little wrote a post headlined “Sino Clean Energy Is a Complete Hoax and Its Shares Are Worthless.”

Okay, now, here’s what Sino Clean Energy does, according to its own website:

Sino Clean Energy is commercial producer and distributor of coal-water slurry fuel (“CWSF”) commonly referred to as Coal Water Mixture (“CWM”) which is clean fuel that consists of fine coal particles suspended in water.

Clean fuel? I’m sorry, is it just me, or does a slurry made of water with fine coal particles suspended in it sound like the dirtiest thing ever? I mean, that stuff is going to stain. You’ll need Lava soap, a pumice stone, and at least 20 minutes of hand washing after you put your hands in that, I’m thinking. Before you write me and tell me they mean “clean burning,” I get that. But I still find it hilarious to call “coal-water slurry” clean fuel.

Anyways, Bloomberg has a source that says Alfred Little is a “cover for a group of investors and research analysts, most of whom are Chinese, who are making money exposing fraud in Chinese U.S.-listed companies.”

If this is really market manipulation, shouldn’t buying shares of these companies at depressed prices be a terrific bargain? And if that’s true, shouldn’t the market solve this problem without involving the courts?

Neither DEER nor Sino Clean Energy responded to Bloomberg’s requests for comment. If I were an upstanding U.S.-listed Chinese company screwed over by market-manipulating short-selling bloggers, I would have been all over that attempt to defend myself.

That seeming reluctance to talk, combined with a shady way these companies had of getting listed on American exchanges, called a “reverse merger,” plus the fact that DEER and Sino Clean are being sued in shareholder class-actions, makes me suspect that free speech is doing exactly what it’s meant to do here.

Forever 21 Threatens to Sue Critical Fashion Blogger Out of Existence

Tuesday, June 7th, 2011

Blue ruffled romperClothing retailer Forever 21 is threatening to sue blogger Rachel Kane if she does not take down her blog

Forever 21′s alleged cause of action is trademark infringement. Which is absolutely ridiculous. The test for trademark infringement is “likelihood of confusion.” The question for the court would be, “Are consumers likely to be confused as to the source of, thinking they are really dealing with Forever 21?”

Of course they wouldn’t be. Especially when Kane deals out criticism like this, referring to the blue romper on the right:

Quick question. Just, super fast. One minute…

Ruffled Romper: $24.80

WTF IS this?

Seriously. Why does this romper exist? Is it the official uniform of some highly unfashionable flight attendants from the 50?s?

I wouldn’t wear this on a DARE, let alone pay $25 for it and be SEEN wearing it up and down the land during my daily life.

It looks like something in the collection of casual wear from “The Running Man.”

Forever 21,


Apparently, Forever 21 doesn’t like criticism. (Even though Kane mixes in admiration for her favorite store, such as “pay[ing] earnest tribute to Forever 21′s cunning clothing style.” Most recently, Kane saluted Forever 21′s “flouncy, feminine features made to keep you feeling and looking cool for the fairest months of them all.”)

Forever 21′s thugster stance on intellectual property is especially ironic considering that they are constantly being attacked by whining designers who bristle at Forever 21′s perfectly legal copying of their designs. In fact, Forever 21′s fans are habitually fighting off attempts by elite fashion designers to push new legislation through Congress that would illegalize F21′s business model.

As Kane might say:

Forever 21,


Twitter Turns Over Identity of Anonymous User in Defamation Case Springing from the U.K.

Friday, June 3rd, 2011

Jerry Brito in Time/Techland: Twitter Unmasks Anonymous User in U.K. Libel Case